Category Archives: International Law

Does the arbitral court’s discussion of kompetenz-kompetenz make sense?” W., a young female Chinese graduate student, softly asks me as we walk past Beijing’s Ministry of Foreign Affairs building under an afternoon drizzle recently.

Her question is at the heart of the Permanent Court of Arbitration’s (PCA) jurisdiction over the South China Sea case filed by the Philippines, despite China’s objection.
“It’s the arbitral court’s competence to rule on its own competence to hear the dispute,” I answer, with a nod to Kelsen’s theory that international law springs from a grundnorm (fundamental norm). She obviously knows. She’s politely raising doubts over the PCA’s voiding of the “nine-dash line” claim.

Following an international law conference in Beijing in mid-October, W. shows Herbert Loja—a Pinoy PhD student at the Hong Kong University—and me around the city’s tourist spots.

Many young people now study international law in droves after the court’s ruling, says W., a student at the China University of Political Science and Law. Are Filipinos her age similarly driven? I wonder.

Conversant with Mao and Marx, she is tall and lively, and speaks English with a slight British accent, acquired by “listening to BBC broadcasts.” If her studies are an indication, her generation of students knows Western modes of thinking in international law, and the imperialist roots of the current purportedly rules-based international legal regime.
Earlier, over a lunch of bowls of steaming noodles in a trendy basement restaurant on Wangfujing street, we discussed a new book on theories of international law by a noted European scholar.

At the Asian Society of International Law conference hosted by Renmin University where Herbert and I read papers, scholars pondered the global shifts that had taken place since 2016. State sovereignty is back with a vengeance, said Society president Harry Roque. With the American retreat deep into national anxieties, emergent powers have freer rein to pursue their own vision of international relations in a multipolar world.

Cynicism is rife. Former colonies oppose universal rules with new vigor, saying such were made to favor former colonizers. The old logic of international law as might is right resonates with countries that should know better, precisely because, once upon a time, they were at its receiving end. But it pays to remember, argued professor Shinya Murase, that it was newly decolonized states (the Philippines included) that pushed the United Nations for equal human rights protection.

The drizzle is now a downpour, as we reach the gates of the colossal 18-hectare National Museum of China. Nearly half the size of our Mall of Asia, it’s a stone’s throw away from Tiananmen Square, scene of a massacre in 1989, when Chinese army tanks crushed a prodemocracy student protest. The carnage is forgotten while the museum runs a permanent exhibit, “The Road of Rejuvenation,” on the Western powers’ humiliation of China and its desire for vindication.

A beneficiary of the dividends of China’s huge investments in higher education, W. hopes to become a diplomat. For now, she volunteers for a Chinese NGO working among Syrian refugees in Turkey, and plans to get an internship at The Hague next year.
Though many Chinese universities now rank among the world’s best, few Filipinos think of Beijing as an education mecca. But we need to thoughtfully argue our rightful place as a nation, in a language that the Chinese understand very well—theirs.

If language is a door to a culture’s deepest thoughts, imagine Filipino legal scholars discussing fluently in Pinyin with their Chinese counterparts the finer points of China’s own Hobbesian realpolitik toward other states! In fact, we need more young Filipino scholars from all possible fields studying in the best Chinese universities.

There, they may yet win respect from China’s future leaders for the unfinished struggle for self-determination of Asia’s first republic.

Politicians, courts and activists invoke the “public interest” at the drop of a hat, the better to marshall it in support of a favored doctrine or project. But consider this:

For the sake of the public interest Plato and Fichte defended the withdrawal of the children from their parents and wanted their education to be entrusted to the body politic. With an appeal to the public interest Plato wanted to abolish marriage and private property as far as the ruling classes of his ideal State were concerned. Aristotle wanted education to be made uniform in ‘the public interest’; on the same ground Rousseau wished to destroy all the particular associations intervening between the State and the individual citizen. Wolff desired the body politic to meddle with everything human and, at least for the Protestant Churches, he wanted the government to fix the confession.

The idea of the ‘salus publica’ was the hidden dynamite under the Humanistic natural law theories of Hugo Grotius and S. Pufendorff. In Chr. Wolff’s doctrine of natural law this idea resulted in a frankly admitted antinomy with his theory of innate natural rights. The slogan of the public interest was the instrument for the destruction of the most firmly established liberties because it lacked any juridical delimitation. The terrible threat of Leviathan is audible in this word as long as it is used in a juridically unlimited sense. The universalistic political theories could conceive of the relation between the State and the non-political societal structures only in the schema of the whole and its parts. This is why they could not delimit the idea of ‘the public interest’.
(“Dooyeweerd 1997–III: pp. 442–443)

Going over Republic v. Sandiganbayan’s ponencia by J. Carpio in class last night, I was struck by the abnormal situation it had to cope with and the way in which the Court dealt with it. For one, we have to realize that the 1987 Charter is a constitution that expressly carves out a state of exception for a series of acts committed by the revolutionary government — through Jovito Salonga no less! –in the constitutional interregnum.

The interregnum was our Schmittian moment in a deeply paradoxical way: we ousted the martial law regime but resorted to some of its tactics to make sure the political gains already won will not be lost again. Indeed, in the 1987 Charter, we have a constitution that expressly sanctions unconstitutional acts committed in the space of the interregnum s when there was no operative constitution!

Section 26, Article XVIII, states:

SECTION 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period.

A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof.

The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided.

As it were, it co-exists happily with Art. III, the Bill of Rights.

Second, the way in which J. Carpio directly applied international law into a domestic question of unreasonable search and seizure, purportedly because there was no Bill of Rights to speak of, with the throwing out of the 1973 Marcos constitution by the People Power Revolution.

It’s as if –among other things — nearly nine decades of jurisprudence laying down due process protections did not exist, the doctrine of stare decisis ceased to apply, and Art. 8 of the Civil Code also went out the window along with the 1973 Constitution. Dean Magallona’s critique of this decision was spot on, if only it wasn’t cryptic in parts. Nevertheless, that offending clause in the 1987 Charter is more Agamben than Schmitt to me.

I guess it’s inevitable that the issue of Itu Aba would surface yet again in the wake of the Philippines’ resounding victory in the South China Sea Arbitration. As I noted in that earlier post detailing what we won before the Arbitral Court, the island — occupied by Taiwan — was a sore point between Justice Francis Jardeleza (and his successor at the Office of the Solicitor General, Prof. Florin Hilbay), and Justice Antonio Carpio. The latter (with Chief Justice Sereno) even went as far as opposing the former’s appointment to the Supreme Court because of Jardeleza’s stance when he was Solicitor General. For background, click here and here.

A few days ago, Rappler came out with a piece recalling the Jardeleza-Hilbay tack on their alleged Itu Aba “miscalculation.”

Hilbay, now back at his old professor’s perch at the UP College of Law (funny, Jardeleza, Carpio and Sereno all served as professors at the College at some point in their legal careers), wrote a retort to Rappler’s rap. Rappler duly reported on his retort here.

This morning, I received a text from Prof. Hilbay expressing his reservations about the treatment his written statement had received in the Rappler news item. I obtained a copy of his statement and am posting it below, for your own benefit and appreciation:

(A PDF file of the statement and the Memorandum mentioned in it may be downloaded here).

First. I do not suppose the writers consider themselves experts in the law of the sea, much less official participants with personal knowledge of the West Philippine Sea litigation. I am therefore amused at the accusatorial tone they have taken on previously undisclosed legal strategy which, in fact, resulted in an overwhelming victory. Whether they are adopting the opinion of any person officially or unofficially connected with the case is also not stated. I am therefore left to respond to conclusions based on gossip, even as they were written by people I consider respectable journalists.

Second. In the coming months and years, the nation will have an opportunity to look under the hood of this magnificent legal accomplishment. Thankfully, given the positive legal result, the challenge will be about proper documentation and accurate narration of how this result came about, not about who should be blamed for what. The room is big enough and the pages of history books (or even Facebook) sufficiently spacious to toast the contributions of women and men privileged enough to have had a direct or indirect connection with the case. The bucket can accommodate decent human beings, and there’s no need to reduce oneself into a crab.

Third. Given the magnitude of this case and the multi-layered controversies surrounding it, I consciously adopted a policy of keeping documents and having multiple witnesses. This should eliminate erroneous factual claims and reduce subjective elements in the narration of the history of this case, which I intend to write. I saw myself simultaneously as a participant and an observer. As the former, my goals were to achieve an efficient win, reduce the impact of potential losses, and protect the President. As the latter, I was an excited case biographer.

Fourth. I saw the Itu Aba issue as belonging to the baskets where there was a need to reduce the impact of a potential loss and protect the President. By now, people should be aware that the Itu Aba issue is one where the entire team’s level of confidence was not at its highest. This explains why that feature was not included in our “complaint” in the first place. My discomfort with the treatment of Itu Aba figured prominently in a 2014 Memorandum I sent to Executive Secretary Paquito Ochoa, Jr. and Chief Presidential Legal Counsel (now Justice) Alfredo Benjamin Caguioa. This should be remarkably self- explanatory, and an interesting read.

I invite Ms. Hofileña and Ms. Vitug to reveal any other 2014 “official communication” from me to Malacanan.

Fifth. Ms. Hofileña and Ms. Vitug have a wildly mixed-up sequencing of events, which is to be expected from those who do not have official documents or had no direct and personal knowledge of events. Let me take the cudgels for them on one critical decision- point.

In the hearing on the merits last November 2015, the Tribunal made the Philippines grapple with a hypothetical: what happens if a feature (Itu Aba) were declared an island under UNCLOS (which therefore generates an Exclusive Economic Zone of 200 nautical miles from its coastline)? The original, proposed answer was that the Tribunal would retain jurisdiction to control, by some means, the conduct of the parties “pending agreement on delimitation or joint development arrangements.” I thought this was both novel and strange. This was the first time this theory was broached, and the proposal to softly offer “joint development arrangements” if we lose on the Itu Aba issue was problematic.

Witnesses to the agent’s discussion with foreign counsel, assuming they’re not deliberately forgetful, will remember two important points I repeatedly emphasized—

1) Commit to the wave. I did a short lecture on how surfers are able to catch big waves. Itu Aba is a wave we absolutely needed to catch, and we should not signal to the Tribunal that we think we might lose. We needed to focus our firepower on winning that issue instead of sheepishly offering “joint development arrangements” for when we lose. We should not, therefore, telegraph our punches.

2) Avoid impression of selling out. The Philippines, in this litigation, should not be seen as offering “joint development arrangements” as a second option or a compromise. For myself, I was particularly worried about being seen as inserting a very specific economic incentive as trade-off for losing the Itu Aba question. I told everyone “I will not be the Solicitor General who sold this case to China.”

In the aftermath of that meeting, foreign counsel strengthened (even more) the arguments on Itu Aba, dropped “joint development,” and recast the Philippines’ post-loss scenario to not make it appear we were not confident about winning Itu Aba.

At the conclusion of the hearings, Paul Reichler and Bernard Oxman (who delivered the wonderfully powerful speech for that hypothetical) thanked and congratulated me for my intervention. On my flight back home to Manila, I emailed Prof. Oxman: “I am serious when I tell you that your speech on the third day will probably be remembered as one of the most important speeches on the South China Sea disputes, and I’ll surely remind everyone of that fact.”

I think we won the Itu Aba issue because everyone from the Philippine side and the foreign counsel’s side was professional enough to realize that our occasional disagreements in this case could lead, rather thankfully, to compromises over our strongly held opinions. Fortunately, the brew was sufficient to convince the Tribunal that our arguments on the various submissions were correct.

Moving forward, I think the wise attitude here is to celebrate the victory, not malign anybody’s contribution. Justice Jardeleza, always fond of quoting JFK, would usually remind me that victory has a thousand fathers, but defeat is an orphan.

ONE WAY to frame the Philippine claim in regard to areas in the South China Sea is from the right to self-determination for its own people as to the use of natural resources that are rightfully theirs. As held in the East Timor case, such right is peremptory and invokes erga omnes omnium (universal) obligations. This is from the point of view of state responsibility reinforcing erga omnes partes (treaty) obligations.

Thus, under the law on state responsibility, states not party to the dispute in question have an obligation to respect the territorial integrity and sovereign rights of the Philippines; they are legally bound to refuse to recognize the Chinese Nine-Dash Line as lawful, and to refrain from recognizing or entering into any agreements with China for the unlawful exploitation of natural resources in the Philippine EEZ and the Continental Shelf.

There is also the positive duty on the part of all states to cooperate to put a stop to such unlawful acts. Even non-parties to the UNCLOS are bound by such an obligation, it being (jus cogens) peremptory in nature.

The Philippines’ entitlement to the fruits of such a right has already been confirmed and upheld by the landmark judgment of the Permanent Court of Arbitration in the South China Sea Arbitrationcase.

Lawyer Joel Butuyan, in his Philippine Daily Inquirercolumn and Justice Antonio Carpio in his public statements have already pointed to the possibility of suing third parties conniving with China in exploiting resources within Philippine EEZ and the Continental shelf within the UNCLOS regime.

The law on state responsibility solidifies the Philippine claim against such a situation through the legal effects of the right to self-determination. This is general international law complementary to the Law of the Sea regime.

And so the Philippines has just had its Nicaraguan moment as it clinched a unanimous decision in most of its 15 arbitral claims against Chinese “Nine-Dash Line” expansionism in the South China Sea.

The Permanent Court of Arbitration, in a landmark ruling released July 12 on the case In the Matter of the South China Sea Arbitration (it’s formal name, also referred to here as the Philippine Case), invalidated China’s claims over pretty much of the maritime areas in the region.

The Arbitral Court also clarified in favor of the Philippines the status of many features in the contested Spratly islands and Scarborough Shoal with both scientific and legal criteria, in relation to a resource-rich Exclusive Economic Zone (EEZ) and Continental Shelf.

The win recalls an earlier and similar David versus Goliath seminal ruling by an international tribunal, the case filed by Nicaragua against the United States in 1984, which was decided by the International Court of Justice in 1986. Here, the United States was sued by Nicaragua before the World Court over the former’s promotion of Low Intensity Conflict and direct military action in its territory through the mining of its harbors. The ICJ ruled in Nicaragua’s favor against its giant legal opponent.

Key wins for the Philippines

For the most part, the PCA’s definitive clarifications agreed with the Philippine position; but where it did not, the country still came away the winner. Thus, the following important takeaways from the Arbitral Award:

Historic rights to living and non-living resources in the South China Sea are incompatible with the maritime entitlements provided in the 1982 UN Convention on the Law of the Sea, insofar as these fall within the Exclusive Economic Zone (EEZ) of other States in the region. What is doubly significant is that the Arbitral Tribunal also found evidence that consistent with the language of the UNCLOS itself, the Chinese understanding and practice of historic rights as to the Nine-Dash Line does not pertain to historic title to land or maritime areas, which would amount to a claim of full sovereignty, but only to “historic rights short of title.” As the UNCLOS superseded any historic rights, or other sovereign rights or jurisdiction, in excess of the limits it imposes, the Nine-Dash Line claim cannot survive the treaty’s maritime regimes. In this way, the Arbitral Court also made short shrift of Chinese arguments that the issues brought before it by the Philippines were among those it had made reservations about as far as the application of the Annex VII compulsory dispute settlement mechanism of the UNCLOS is concerned. It bears stressing also that the Arbitral Court deals only with the application and interpretation of the provisions of the UNCLOS and is not competent to adjudicate issues of ownership of disputed islands.

Mischief Reef (Panganiban Reef) and Second Thomas Shoal (our Ayungin Shoal where we have grounded the BRP Sierra Madre as our forlorn if rutted outpost) –these being low-tide elevations as we had argued– are part of the Philippines’ Exclusive Economic Zone and Continental Shelf. China cannot prevent the Philippines from exercising its sovereign rights over waters and features found within its EEZ.

Mischief Reef being part of the Philippines’ EEZ and Continental Shelf, China has no business reclaiming it and building artificial islands over it. Moreover, no amount of construction by China can transform low-tide elevations or rocks into full-blown natural islands able to generate all the maritime entitlements under UNCLOS.

The other features in the Spratlys, namely Fiery Cross Reef, Johnson Reef, McKeenan Reef, and Gaven Reef (North) were held to be rocks unable to independently sustain human habitation or economic life and entitled only to a 12-nautical mile territorial sea. Meanwhile, Hughes Reef, Gaven Reef (South) and Subi Reef were held to be low-tide elevations not capable of appropriation by China. Thus, both sets of reefs do not and cannot generate any EEZ for China.

Scarborough (Panatag) Shoal is no more than a group of rocks jutting out of the water at high tide, able only to generate a 12-nautical mile territorial sea. However, the Arbitral Court said that the area is subject to traditional or artisanal fishing rights for fishermen from the Philippines, China (and Taiwan) and Vietnam. This is without prejudice to some future determination of who owns the Shoal, a question not within the competence of the Arbitral Court to decide. China violated these traditional fishing rights when it barred Filipino fishermen from the Shoal.

In a bit of a surprise (may be not, given the scientific side to it), the Arbitral Court ruled that none of the high-tide features in the Spratlys –including our Pag-asa (Thitu) island in the Kalayaan island group — can sustain human habituation or economic life on their own in their natural condition. The Taiwan-occupied Itu Aba itself, at one point considered a “game changer” in the proceedings and a contentious issue between Associate Justice Francis Jardeleza and Associate Justice Antonio Carpio – two members of the Philippine legal team – is technically a rock. Thus, none of the islands can generate anything beyond a 12-nautical mile territorial sea.

Following this, none of the features that mattered for the Philippines, whether low-tide elevations or high-tide formations, can generate maritime entitlements in favor of China or that would immediately require a delimitation of boundaries, which situation would be beyond the Arbitral Court’s jurisdiction.

The Court rejected the Chinese position that the Spratlys is one archipelago generating as a whole its own territorial sea, contiguous zone, continental shelf and EEZ. This may prove to be an important factor if and when the question of who owns which island in the island chain is actually submitted to another international arbitration proceeding, this time, under principles of general international law. It bears noting that in its 2009 Baselines Law – seen by critics as the country’s waiver of its historic claims to title under the 1898 Treaty of Paris – the Philippines also treated the islands in the Spratlys under its control as belonging to a regime of islands under Art. 121 of the UNCLOS.

The Arbitral Court held that Chinese incursions in the Reed Bank area (Recto Bank for the Philippines, where oil exploration rights had been granted by the Philippine government) violate the Philippines’ sovereign rights over its Continental Shelf.

Under the UNCLOS and relevant treaties, there is an obligation on the part of states to protect the marine environment from degradation as well as to ensure safe marine navigation. The PCA found that the Chinese government tolerated and protected Chinese fishing vessels engaging in harmful harvesting activities of endangered species at Scarborough Shoal, Second Thomas Shoal and other features in the Spratly Islands. At various times, China was found to have also engaged in unsafe marine navigation vis-à-vis Philippine ships, thus violating relevant treaties to which it was a party stipulating best navigational practices. It also held that China has engaged in irreversibly destructive island-building activities at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, Subi Reef and Mischief Reef. These acts and omissions violated China’s obligations under UNCLOS to protect the marine environment.

The Philippines’ Nicaraguan Moment

What the Nicaragua case (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) had done for the international law on the use of force and the threat of force, the Philippine Case has just did for the Law of the Sea in many key areas. It established definitive rules on such areas as the legal status of historic rights in relation to the maritime entitlements under the UN Convention on the Law of the Sea, artificial and natural islands, low-tide elevations, responsibility for environmental damage, safety in marine navigation, and traditional fishing grounds as against the EEZ.

The Arbitral Award is yet the most comprehensive in scope since the International Tribunal on the Law of the Sea began hearing procedures under a compulsory dispute settlement mechanism of ANNEX VII of the treaty, which took effect in 1994.
The five-member arbitral tribunal was convened in 2013, comprised of some of the world’s leading subject-matter authorities. Presided over by Judge Thomas A. Mensah of Ghana, a former President of the International Tribunal for the Law of the Sea in Hamburg, Germany, it included three of the sitting judges on that court, namely Judge Jean-Pierre Cot (France), Judge Rüdiger Wolfrum (Germany) and Judge Stanislaw Pawlak (Poland), and Professor Alfred H. A. Soons, the former director of the Netherlands Institute for the Law of the Sea.

Uncanny parallels and ironies

The uncanny parallels and ironies in the two leading cases are a-plenty, although they concern by and large different areas of international law.

Not to be missed is the fact that Foley Hoag, the Philippines’ lead counsel in the South China Sea Arbitration is the same American law firm that won for Nicaragua respect in the world stage in its legal battle against the United States at the height of the Cold War. Both cases involved a behemoth in world politics – the United States in the 1986 case, China in the 2016 case.

The first case was filed over American intervention in a country that had turned communist and had repudiated ties with a former patron; the second case involved a communist state’s Post-Cold War ambitious and creeping occupation of a wide expanse of maritime territories encompassing some of the world’s busiest sea lanes.

In the Nicaragua Case, although the United States participated in the Jurisdictional Phase, it disengaged from the proceeding as it went to the Merits. In the South China Sea Arbitration, China formally stayed away from the proceedings from Day One, calling it illegal (but informally put forward its position to the Arbitral Court, including writing individually its members as well as publicizing a position paper it had commissioned to rebut the Philippine case).

In both cases, the Courts ruled on the most important questions that it had jurisdiction to hear the controversy brought before it, and decided in favor of the party that filed the suit. The United States in the first case and China in the second case would refuse to recognize the court judgment.

Yet in the Philippine Case, the United States vigorously supported its long-time ally and former colony in its campaign to invalidate China’s expansive Nine Dash-Line claims. This, even if it is not a party to the UNCLOS.

The Nicaragua Case would go on to be an important precedent for many other international law cases, reshaping fundamental ways in which the international community now understands the use of force and the threat of force as a means of settling international disputes under the UN Charter. Some scholars also credit the ICJ’s ruling in the de-escalation of many insurgency-related conflicts in the Latin American region.

In the South China Sea dispute, the US had called on China to follow a rules-based regime in settling the maritime conflict, when three decades earlier, it was not willing to abide by the binding nature of the ICJ’s judgment in the Nicaragua Case.

In fact, in the Philippine Case, the Permanent Court of Arbitration itself would cite the Nicaragua Case favorably in establishing why it had jurisdiction to hear the case, yes, even despite the non-participation in the proceedings of interested parties other than China.

On that question as well as on where and when a party is defaulting, the Arbitral Award is a masterful study of why international law cannot be allowed to be held hostage by the refusal of a state – a superpower at that in this case – to participate in a proceeding that concerns communal interests.

The independence of international tribunals is immensely important in the legitimacy of their rulings. The South China Sea Arbitration, as does the Nicaragua Case, shows that international law – contrary to what the Marxist theorists have put forward in the past, can be divorced from the politics of naked power.

It is likely that scholars and international tribunals would mine the Arbitral Award’s nearly 500-page carefully argued ruling on the Merits as a bible of sorts on the UNCLOS for many years to come.

The way forward?

The ICJ’s first female judge, Prof. Rosalyn Higgins, defines international law as a “normative process of authoritative decision-making.” By this definition, the Arbitral Award is already a big step towards legal stability in the South China Sea, removing once and for all the ambiguities that had attended the Chinese Nine-Dash Line claim since it was first advanced in the late 1940s.

By its very nature, the UNCLOS itself was designed to define in clear terms what maritime entitlements accrue to a coastal state, and the PCA, in the South China Sea Arbitration, has just made clear Chinese maritime claims cannot exceed what is available to it under the multilateral treaty.

As former University of the Philippines professor Harry Roque, now a legislator, argued, “the Court’s decision in this arbitral case will be its own enforcement mechanism.”

Roque, who taught international law for many years, said that a declaration by an impartial tribunal of the illegality of an act of a state in this case “has inescapable profound implications on what kind of values the international community wants to govern the way relations between and among states are conducted.”

Vociferous Chinese opposition to the Arbitral Award has evoked in Chinese constituencies memories of egregious past historical humiliations during colonial times. It has even kicked up the specter of a proxy war in which the real power behind the arbitration is the United States – the same country that refused the ICJ’s ruling in the Nicaragua Case thirty years ago. (The fact that the American law firm that gave a resounding defeat to the US in the Nicaragua Case is the same law firm that litigated the South China Sea Arbitration on behalf of the Philippines somehow blunts the charge).

Yet, on many levels, the Philippines in the South China Sea Arbitration may be better situated than Nicaragua was when it won the ICJ ruling in 1986.

For one, many countries other than the United States have, from the beginning, supported the Philippine cause, including those considered as “specially affected states” in international law.

Too, major European powers that supported the American veto against the ICJ’s Nicaragua Case ruling have expressed support for the Philippine arbitral case against China (as in the case of France and the United Kingdom). Indeed, many big players in the European Union have urged China to act according to international rules.

To a big extent, this is because other than territorial or maritime concerns, the South China Sea region straddles an area with enormous economic potential that goes beyond its actual geophysical reaches; it practically implicates the global economic order, as a third of the world’s shipping pass through the region.

There is also the fact that the Arbitral Award has far-reaching consequences – a “domino effect” – even if refused acceptance by China; this is because it without doubt also benefits other claimant states – again, members of the ASEAN – who reject Chinese claims that encroach on the maritime regimes they also claim for their own under the UNCLOS. The Arbitral body’s decisive demolition of the Nine-Dash Line claim has that effect.

Moreover, with a judgment embodying definitive rulings on what before were unclear problem areas as far as the features found in the South China Sea is concerned, the Arbitral Award presents a logical and legal basis for a proposed Code of Conduct among claimant countries belonging to the Association of Southeast Asian Nations.

Perhaps, at no other time than this has it become opportune for the ASEAN to deal collectively with the elephant in the room that is China. While it is true that China is a major trading partner for many of them, the regional body cannot ignore any instability in the region sparked by the increasingly intransigent Chinese coming at a time when the association is moving towards greater economic integration.

And at least with respect to the Scarborough Shoal, there is room for compromise, or the development of a common code for traditional fishing, as pointed to by the PCA in its Arbitral Award. This may also present a door of opportunity to engage non-state actors – civil society groups from all sides of the dispute – who had been sidelined by the realist politics that had taken over the public discourse over the South China Sea maritime conflict. Far too often, state-to-state confrontations leave out the very people who are the first to be affected by such conflict.

Paradoxically, it also gives the Philippines greater constitutional flexibility. The 1987 Constitution expressly allocates the resources in the country’s EEZ for the exclusive use of its citizens. It is however silent where resources in traditional fishing grounds are concerned.

In any case, its 2009 Baselines Law had carved out a regime of islands out of Scarborough Shoal; it is a designation that does not necessarily conflict with the Arbitral Award stating that the Shoal is but an outcrop of rocks, or an island complex unable to sustain human life or economic activity, not to mention that the Philippine Supreme Court had also already rejected a constitutional challenge to the new Baselines Law.

Thus, President Rodrigo Roa Duterte may very well be correct in his basic stance of renewed diplomatic ties with China –but only if he negotiates from the unprecedented position of moral and legal strength the PCA’s Arbitral Award has just given to us.

* Mr. Bagares has a law degree from the University of the Philippines and serves as Executive Director of the Manila-based Center for International Law, an NGO dedicated to the promotion of the Rule of Law in the ASEAN region through binding international legal norms. He also teaches public international law at the Lyceum Philippines University College of Law.

This essay first appeared in a slightly different form at Verafiles.org.

by Harry Roque and Romel Regalado Bagares, counsel for the Malaya Lolas

Why is Japan settling the Comfort Women issue only with South Korea and not with the Philippines or any other country whose citizens fell victim to the rapacious Japanese Imperial Army?

Are Filipinas raped and ravaged by the Japanese Imperial Army during World War II any less human than their South Korean counterparts?

And what is our government doing about the case of the Filipino Comfort Women whose claims against Japan have remained pending?

We raise these questions in the wake of recent reports that the Japanese and South Korean governments have finally reached an agreement to settle the 70-year old issue of the South Korean comfort women – or, in the case of the latter, girls and women forced to have sex with Japanese soldiers from the 1930s until the end of World War WII.

According to the agreement the Japanese government will offer a one-time final apology and to pay 1 billion yen ($8.3m) to provide care for victims through a foundation.

While we would like to see details of this agreement show an official acknowledgment of responsibility by Japan – because precisely, the previous apologies issued by Japan do not appear to be on behalf of the State but were cast as if there was no official policy implemented to forcefully conscript Asian women as sex slaves – news of this agreement only makes the insult against Filipinas who suffered the same fate sharper and deeper.

It also underlines the Aquino government’s continuing refusal to abide by its obligation under international law to provide an effective remedy against its own citizens who had been brutalized by the Japanese Imperial Army during World War II.

The Filipino Comfort Women are dying one by one. Each day that they are ignored by their own government, any hope of official acknowledgment and reparations grows dimmer as the shadows of old age and mortality cast a dark pall on their faces.

They should not be used as pawns by states in the geopolitical controversies of the day, as we fear is happening in regard to the Filipino comfort women. What we mean is that victims of horrendous human rights violations should not be used by our government as a leverage in its talk with Japan for support against China over the West Philippine Sea controversy.

Today, we hear of reports of more official Japanese government aid to the Philippines in the form of patrol boats to the Philippine Coast Guard and soft loans worth hundreds of millions of dollars for various infrastructure projects.

But these official aid initiatives will not erase Japanese official responsibility over the sexual slavery its own soldiers have subjected many Filipinas when they invaded the Philippines 70 years ago.

Background to the Malaya Lolas case

In 2004, the Center for International Law (Centerlaw) filed a petition in behalf of 70 plus members of the Malaya Lolas group, who survived the Mapanique, Tarlac siege by the Japanese Imperial Army during World War II. In the petition, the Malaya Lolas charged that they were victims of systematic rape and sexual slavery committed by the Japanese, and they asked the High Court to compel the Philippine government to espouse their claims against Japan. On April 28, 2010, the Philippine Supreme Court dismissed the petition.
The Supreme Court’s decision sparked a massive controversy when significant portions of it were discovered to have been lifted from various sources without proper attribution. In addition to the plagiarism, it appears that these stolen passages were also twisted to support the court’s erroneous conclusion that the Filipina comfort women of World War II have no further legal remedies.

A Motion for Reconsideration and a Supplemental Motion for Reconsideration were subsequently filed by the Centerlaw on behalf of the Malaya Lolas highlighting the alleged plagiarism and twisting of sources. The Malaya Lolas, in their Supplemental Motion for Reconsideration said the High Court’s ruling, penned by Justice Mariano Del Castillo, “made it appear that these sources support the assailed judgment’s arguments for dismissing instant petition when, in truth, the plagiarized sources even make a strong case for the petition’s claims.”

On March 27, 2013, Centerlaw filed a manifestation asking the Supreme Court (SC) to consider a 2011 decision by the Constitutional Court of Korea on the issue of Korean Comfort Women in resolving the controversial Malaya Lolas case. This was noted by the Court in a resolution issued on April 11, 2013.

Centerlaw also filed a Motion for Leave to File Petition for Intervention on behalf of the European Commission on Human Rights (ECCHR). The Motion was denied by the Supreme Court stating that intervention can no longer be had once the case has been submitted for resolution.

In August 5, 2014, the Supreme Court denied the Motion for Reconsideration and Supplemental Motion for Reconsideration filed by Centerlaw on behalf of the Malaya Lolas.